The confidentiality agreement landscape has changed more in the past three years than it did in the prior twenty. The Speak Out Act (passed in late 2022) made pre-dispute NDAs unenforceable for sexual harassment and sexual assault claims. State laws in California, New York, Washington, and Oregon have gone further, limiting NDAs for a broader set of workplace discrimination and retaliation claims. The NLRB has pushed back on overbroad NDAs that chill Section 7 activity. The document itself is still valuable, but the scope has narrowed, and employers still using old templates are creating enforcement risk without realizing it.
What Confidentiality Agreements Can Still Legally Cover Trade secrets, proprietary business information, customer and vendor lists, pricing and strategy documents, unreleased product roadmaps, and financial data are all defensible. The same applies to personal employee data protected under state privacy laws, medical information under HIPAA, and client information covered by professional confidentiality rules. These categories remain largely unchanged.
What's changed is what an NDA cannot cover: sexual harassment and assault allegations (federally), broader discrimination and retaliation claims (in some states), whistleblowing on illegal activity (long-standing federal protection), and Section 7 activity related to wages, hours, or working conditions.
The Speak Out Act and What It Changed The Speak Out Act applies to pre-dispute NDAs signed before a sexual harassment or assault dispute arises. After a dispute arises, parties can still negotiate confidentiality as part of a settlement. What employers cannot do is require new hires to sign a general NDA that would prevent them from later talking about harassment or assault they experienced. Offer letters and employee handbooks written before late 2022 often have language that runs afoul of this rule.
Does the Speak Out Act Cover Other Discrimination Claims? At the federal level, no. It's limited to sexual harassment and sexual assault. Several states have extended similar or broader limits to race, disability, age, and other types of discrimination claims. California's STAND Act and New York's NDA reforms are the most far-reaching. Employers operating in multiple states need state-by-state review.
Where Confidentiality Agreements Go Wrong The typical failure is overbreadth. Language like "employee agrees not to disclose any information about the company or their employment" is unenforceable in most jurisdictions because it sweeps in protected speech. Similarly, NDAs that prohibit cooperation with government investigations, SEC reporting, or EEOC filings run afoul of whistleblower protections and trigger additional penalties. Specific carve-outs solve most of these problems, but only if they're actually in the document.
Building Confidentiality Agreements That Hold Up and Don't Silence Concerns The modern confidentiality agreement is narrower, more specific, and carefully carved out. It defines confidential information by category rather than sweeping everything in, excludes protected activity (SEC, EEOC, NLRB, Speak Out Act), and doesn't attempt to silence harassment or retaliation reports. Pair the written agreement with a culture where concerns can be raised without NDAs even being part of the conversation.
AllVoices' anonymous reporting tool and whistleblower hotline give employees a protected channel to raise concerns that no NDA can override, which is exactly what the Speak Out Act expects. Layer those channels with a strong grievance process and clear policy communications.
The full text of the Speak Out Act is at congress.gov . The EEOC enforcement guidance library covers NDAs that restrict participation in agency investigations, and the NLRB's recent memoranda on confidentiality and severance agreements are at nlrb.gov .
.svg)
.svg)
